1. The case originated in an application (no.
48130/99) against the Republic of Bulgaria lodged with the European
Commission of Human Rights (“the Commission”) under former Article
25 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by Mr Ivan Tsekov Vasilev, a Bulgarian
national born in 1979 and living in Vidin, on 14 April 1998.

2. The application was transmitted to the Court
on 1 November 1998, when Protocol No. 11 to the Convention came into
force (Article 5 § 2 of Protocol No. 11).

3. The applicant was represented before the Court
by Mr Y. Grozev, a lawyer practising in Sofia. The Bulgarian Government
(“the Government”) were represented by their Agent, Ms M. Dimova,
of the Ministry of Justice.

4. The applicant alleged that he had been ill-treated
by two police officers and that the ensuing criminal proceedings against
the officers, resulting in their acquittal, had failed to adequately
remedy that.

5. On 4 November 2003 the Court decided to give
notice of the application to the Government. Under the provisions of
Article 29 § 3 of the Convention, on 30 January 2006 it decided to
examine the merits of the application at the same time as its admissibility.
On the same date it invited the parties to submit additional observations.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. The events of 14 May 1994

6. On the evening of 14 May 1994 the applicant,
at that time aged fourteen, went out with several friends in the centre
of Vidin to play electronic games. On the way back he left the main
group to see a classmate of his and her sister to their door. After
he had walked the girls home at about 9.40 p.m., he ran back to re-join
his friends. The applicant was wearing shorts, a yellow tee-shirt and
a green sleeveless jacket.

7. On the same evening, some time after 9.00 p.m.,
the Vidin police received a report that an ice-cream booth in the centre
of the town had been vandalised by two individuals. A police patrol
was dispatched to the scene and arrested the first of them, but the
second managed to get away. All patrols in the area were put on alert
and ordered to track him down. The description given over the police
radio was of a man wearing short pants and a light-coloured tee-shirt.

8. At that time Mr G.G. and Mr V.E., both trainee
police officers, were in the area of the incident, patrolling in Mr
V.E.'s private car. Although they were supposed to be accompanied by
a supervising police officer, chief sergeant A., they were patrolling
by themselves, as sergeant A. had been dispatched elsewhere. Their car
was in a street which was not well lit. Seeing the applicant running
past the car, they assumed that he was the offender at large. They got
out of the car and gave chase. The applicant heard their steps, but,
seeing that they had come out of an unmarked rather than a police car,
kept on running. It was disputed whether or not Mr G.G. and Mr V.E. had
shouted “Stop! Police!” after the applicant. They submitted that
they had done so, whereas the applicant and several witnesses stated
that they had not heard the officers shouting. The chase continued for
about a minute. The applicant ran by a Mr I.P. Shortly afterwards, Mr
G.G. caught up with the applicant in front of a beauty parlour and apparently
tripped him over. The applicant fell on the ground, face down. Mr G.G.
then started hitting the applicant's back and legs with a truncheon
and kicking his torso. Soon after that Mr V.E. caught up with them and
also started hitting the applicant's back and legs with a truncheon
and kicking his torso. The applicant averred that Mr V.E. had sat on
his back and had delivered several truncheon blows to his head. The
applicant was crying and begging the officers to stop, insisting that
he had done nothing wrong. Mr I.P. was an eyewitness to the incident,
and so were a Mr P.S. and a Mr V.K.

9. Shortly afterwards, chief sergeants A.K. and
I.G. arrived at the scene. By that time the physical assault on the
applicant had stopped. The applicant was lying on the ground and Mr
G.G. and Mr V.E. were standing beside him. The applicant's tee-shirt
was soaked with blood coming from the neck area.

10. Chief sergeants A.K. and I.G. helped the applicant
get into their patrol car. On the way to the hospital they stopped at
a fountain and told him to wash the blood off his neck. The applicant
told the officers that he felt pain in his legs and in his right lumbar
area.

11. The applicant was admitted to the emergency
ward of the Vidin Regional Hospital at 10.01 p.m. Upon his admission
he stated that he could not see. His blood pressure was measured to
be 70/0. It was found that he had a traumatic-lacerated injury on the
back of his head. He was also complaining of severe pain in the area
of the right kidney. He was taken to the surgical ward and the injury
on his head was treated.

12. From the hospital the applicant was taken
to the police station, where he was questioned at about 10.30 p.m. It
was established that he had nothing to do with the breaking of the ice-cream
booth. After the questioning an officer took the applicant home. When
the applicant's mother saw the state the applicant was in, she asked
a friend to drive the applicant and herself back to the emergency ward
of the Vidin Regional Hospital. There she was informed that the applicant
had already been treated and that there was nothing more the staff could
do, as there were no doctors on the ward at that time, only paramedics.

13. The applicant and his mother then went to
the police station to find out why he had been beaten and apprise the
police of the names of the eyewitnesses to the incident. They were given
the names of the officers who had assaulted the applicant and sometime
around midnight left the station and went home.

B. The applicant's health condition and medical
treatment after the events of 14 May 1994

14. When the severe pain in the applicant's right
lumbar area continued through the night and blood showed up in his urine,
a doctor was called in and examined the applicant at 2.10 a.m. on 15
May 1994. He found that the applicant had a reddening of the skin in
the groins, parallel traces of blood suffusions and grazes on the calves,
three on the left leg and two on the right leg, and a head injury.

15. At 9.15 a.m. on 15 May 1994 the applicant
went once more to the emergency ward of the Vidin Regional Hospital.
At 10 a.m. he was admitted to the surgical ward. He was diagnosed as
suffering from contusion in the right lumbar area, commotion of the
right kidney and haematuria (blood in the urine), and was treated with
styptics and antibiotics. He remained in hospital until 28 May 1994.

16. Two days later, on 30 May 1994, the applicant
was urgently admitted to the urology centre of the Medical Academy in
Sofia because of macroscopic haematuria (high levels of blood in his
urine) and sustained dull pain in his right lumbar area. His right kidney
was found to be surrounded by a haematoma and retaining liquid. It was
established that his blood pressure was 140/100 because of, among other
reasons, the pressure from the haematoma on the kidney. The applicant
was treated with spasmolytics, analgesics and antibiotics. The applicant
had to be released on 13 June 1994 due to an in-hospital infection outbreak.

17. Throughout the following years the applicant
underwent numerous examinations of his right kidney.

18. On 15 July 1996 the applicant was admitted
to the urology ward of the National Institute for Urgent Medical Care
“Pirogov”, after complaining from dull pain in his right lumbar
area. He was diagnosed as suffering from hydronephrosis of the right
kidney (pathological chronic enlargement of the collecting channels
of a kidney, leading to the compression and the eventual destruction
of kidney tissue and the deterioration of the kidney function). On 22
July 1996 he underwent surgery and his right kidney was removed. On
9 August 1996 he was released from hospital.

C. The criminal proceedings against the police
officers

19. On 14 May 1994 the applicant's mother complained
about his beating to the Vidin Regional Prosecutor's Office. On 16 May
1994 the applicant's father also lodged a complaint with the Vidin District
Prosecutor's Office.

20. On 21 June 1994 the Pleven Military Prosecutor's
Office, which was competent to deal with offences allegedly committed
by police officers, opened criminal proceedings against Mr G.G. and
Mr V.E.

21. The investigator to whom the case was assigned
conducted a series of interviews on 27, 28 and 29 June 1994. He questioned
the applicant, Mr I.P., Mr V.K. and several other witnesses. On 16 and
17 August 1994 the investigator questioned chief sergeant A.K. and two
other police officers.

22. On 17 August 1994 Mr G.G. and Mr V.E. were
charged and questioned. During questioning Mr G.G. stated that he had
tripped the applicant but had not subjected him to any other violence.
Mr V.E. stated that he had only hit the applicant once with a truncheon
on the legs, but had not subjected him to any other violence.

23. On an unspecified date the investigator ordered
a medical expert report to determine the extent of the applicant's injuries.
The report was drawn up by Dr A.I., head of the forensic medicine ward
of the Vidin Regional Hospital. She found that the applicant had had
a wound on his head, haematomas and grazing on his legs, contusion of
the right lumbar area and haematuria. She concluded that the beating
had caused the applicant a short-term life-threatening health disorder,
due to a traumatic-haemorrhagic shock resulting from the contusion of
the right kidney and a massive haematoma around the kidney.

24. On 6 July 1995 the applicant's mother, acting
for the applicant, who was still underage, submitted a civil claim against
Mr G.G. and Mr V.E. She sought 400,000 old Bulgarian levs (BGL)1
on the applicant's behalf.

25. Another series of interviews was conducted
on 20 September 1995 by another investigator at the Pleven Regional
Military Prosecutor's Office. Mr V.K. and Mr P.S. were questioned.

26. On 3 November 1995 the Pleven Military Prosecutor's
Office submitted to the Pleven Military Court an indictment against
Mr G.G. and Mr V.E., charging them with causing intermediate bodily harm
to the applicant. On 6 November 1995 the case was set down for hearing.

27. The first hearing took place on 12 February
1996. Mr G.G. and Mr V.E. were represented by Mr L.I., a former military
prosecutor-general. The applicant, who was also represented by counsel,
amended his civil claim, seeking interest as from the date of the beating
and naming the Vidin Regional Directorate of Internal Affairs as a third
defendant. The court heard Mr G.G., Mr V.E., the applicant, the applicant's
mother, chief sergeant A.K., several other police officers, Mr I.P.,
Mr V.K. and Mr P.S. Noting that the statements of the accused differed
from those of the eyewitnesses, the court carried out a confrontation.
Finally, the court heard Dr A.I., the medical expert who had given an
opinion about the extent of the applicant's injuries. The accused disputed
Dr A.I.'s conclusions and requested a new medical report to be drawn
up by three experts, excluding Dr A.I. The court acceded to the request
and ordered a new expert report, to be drawn up by three medical experts.

28. In their report the three medical experts
(Dr P.L., head of the forensic medicine and ethics department of the
High Institute of Medicine in Pleven, Dr V.G., head of department at
the Urology Clinic of the Institute, and Dr K.P., senior assistant at
the anaesthesiology and intensive care departments of the Institute)
concluded that as a result of the 14 May 1994 incident the applicant
had suffered a contusion of the right kidney, haematomas and grazing
of the two legs, a wound on the head and a reddening in the right part
of the groins. Unlike Dr A.I., they concluded that the traumatic-neurogenic
shock suffered by the applicant had not become truly life-threatening.
They also found that before the incident the applicant had been suffering
from a congenital kidney anomaly, which had been the reason for the
applicant's haematuria after the incident. In the experts' view, the
applicant's kidney injury had not been life-threatening and had had no
long-lasting effects on his health. The beating had caused the applicant
only a temporary (two- or three-week) health problem.

29. The next hearing took place on 19 June 1996.
The court heard the three medical experts, who stated that they adhered
to the conclusions given in their report. The prosecutor noted that
the first report, drawn up by Dr A.I., and the second report, drawn up
by the three medical experts, substantially differed on the issue of
the extent of the injuries suffered by the applicant. He therefore requested
an additional expert report, to be drawn up by five experts, including
Dr A.I. The court acceded to the request.

30. On 20 May 1997 the report of the five medical
experts was ready. They concluded that the applicant had suffered a
traumatic-neurogenic shock, which, however, had not deteriorated and
had not become life-threatening. They also concluded that before the
incident the applicant had been suffering from a congenital kidney anomaly,
which had been the reason for his haematuria after the incident. In
the experts' view, the applicant's kidney injury had not become life-threatening.
As regards the later surgical removal of the kidney and its potential
causal link with the beating, the experts were of the opinion that,
in view of the long time-span between the beating (14 May 1994) and the
surgery (22 July 1996) and the nature of the injury, it could not be
concluded that the removal of the kidney had been a direct and proximate
consequence of the beating. Additionally, the applicant's congenital
kidney anomaly had been prone to natural deterioration and could have
led on its own to a decline in the kidney function, which was what had
made the removal necessary. It could not be categorically established
that the beating had not contributed to the need for the removal of
the kidney, but the main factor had been the congenital anomaly.

31. After several adjournments due to difficulties
with the attendance of all five medical experts, the Pleven Military
Court listed a hearing for 26 January 1998. At that hearing the court
heard all five medical experts. Four of them stated that they adhered
to the conclusions made in their report. By contrast, Dr A.I. stated
that she did not agree with the conclusions of the report and that she
still maintained the opinion expressed in her initial report. The applicant
presented X-rays of his kidneys and, after examining them, the four experts
stated that they still adhered to the conclusions reached in their report.
The applicant increased his civil claim to BGL 10,000,000. In his concluding
argument the public prosecutor stated that, in view of the experts'
opinion, he did not pursue the charge of intermediate bodily harm, and
urged the court to characterise the officers' act as inflicting minor
bodily harm.

32. In a judgment of 26 January 1998 the Pleven
Military Court found Mr G.G. and Mr V.E. guilty of inflicting the applicant
minor bodily harm and not guilty of inflicting him intermediate bodily
harm. It sentenced them to five months' imprisonment, suspended for
three years. The court also partially allowed the applicant's claim
for damages, awarding him BGL 300,0002,
to be paid jointly and severally by the two officers and the vicariously
liable Regional Directorate of Internal Affairs in Vidin.

33. The court found that Mr G.G. had tripped the
applicant and that the applicant had fallen on the ground face down.
After that Mr G.G. had delivered a number of blows on the applicant's
back and legs with a truncheon and had kicked several times his torso.
When Mr V.E. had arrived he had also hit the applicant's back and legs
with a truncheon and had kicked his torso. During the beating the applicant
had told the two accused that he had done nothing wrong. The court stated
that it did not find the accused's averment that they had not beaten
the applicant persuasive, because it was disproved by the testimony
of two eyewitnesses – Mr I.P. and Mr V.K. – and of the applicant
himself. The court considered that the eyewitnesses' and the applicant's
testimony was consistent and reliable.

34. The court also examined the officers' assertion
that they had acted lawfully, in a situation calling for the arrest
of a suspect, and that they had inflicted bodily harm in their efforts
to subdue the applicant. In that connection, it noted that the accused
were substantially stronger physically than the applicant, that Mr I.P.,
Mr V.K. and chief sergeant A.K. had testified that the applicant had
not tried to resist, and that at the time of the incident the applicant
had been fourteen years old. The court accordingly rejected the assertion.

35. As regards the extent of the applicant's injuries,
the court held that the opinion of the four medical experts, which appeared
objective, impartial, consistent, well-reasoned and in conformity with
the medical documents in the case file, should be given more credit
than that of Dr A.I. In the court's view, the four experts' arguments
confuted her opinion. The court therefore held that as a result of the
beating the applicant had suffered a temporary (two- or three-week) non-life-threatening
health disorder, which amounted to minor bodily harm within the meaning
of Articles 128 to 130 of the Criminal Code of 1968 (“the CC”).

36. Finally, the court rejected Mr G.G. and Mr
V.E.'s defence under Article 12a of the CC that they had only used the
force necessary to arrest a presumed offender, injuring the applicant
in the process of subduing his resistance. The court acknowledged the
great disparity in terms of physical strength between the two policemen
and the applicant. Moreover, the other witnesses had clearly indicated
that the applicant had not put up any resistance requiring the use of
force. Finally, at the time of the incident the applicant had been only
fourteen years old and his age was visible from his physical features.

37. Mr G.G. and Mr V.E. appealed, arguing that
their actions had not constituted an offence, as they had acted within
the bounds allowed by the National Police Act of 1993. In the alternative,
they submitted that the sentences imposed on them were too harsh. The
applicant also appealed, arguing that the amount of damages awarded
to him was too low.

38. The Military Court of Appeals held a hearing
on 8 June 1998. The officers were represented by their counsel, Mr L.I.
The applicant was represented by two lawyers.

39. In a judgment of 8 June 1998 the Military
Court of Appeals upheld the Pleven Military Court's judgment. It held
that the manner in which the applicant's injuries had been caused had
been correctly established by the lower court. There existed direct
evidence that the applicant had been subjected to violence even after
he had been brought to the ground and had not had the possibility to
resist or run away. Even if the officers had misidentified the applicant,
this had not legally justified the physical assault that they had inflicted
on him. Moreover, the use of force had continued after the applicant
had been subdued. There existed a direct causal link between the violence
and the injuries sustained, as confirmed by all of the medical expert
reports. The court went on to state that it did not agree with the lower
court's conclusion as regards the extent of the applicant's injury.
To exclude the causal link between the surgical removal of the applicant's
right kidney and the incident of 14 May 1994, the Pleven Military Court
had relied on the conclusion of four medical experts and had rejected
as illogical the conclusion of Dr A.I. However, that court had disregarded
that conclusion on purely formal grounds, without discussing its main
points. It was unclear whether the opinion of the four experts was in
fact based on the raw medical data, which in turn cast doubt on its
correctness. The court concluded that if the lower court had taken into
account these considerations, it could have made a different finding
as to the reason for the surgical removal of the applicant's right kidney.
However, since no appeal had been lodged by the prosecution, the court
only noted this factual mistake and did not correct it in its judgment
by holding that the applicant had suffered intermediate bodily harm,
as that would worsen the accused's position.

40. Mr G.G. and Mr V.E. appealed on points of
law to the Supreme Court of Cassation. The applicant also appealed,
requesting an increase in the amount of damages awarded.

41. The Supreme Court of Cassation held a hearing
on 17 September 1998. It heard the applicant's and the officers' oral
argument and accepted their written pleadings for consideration. The
prosecutor present at the hearing submitted that both appeals were groundless
and should be dismissed.

42. In a final judgment of 11 November 1998 the
Supreme Court of Cassation reversed Mr G.G.'s and Mr V.E.'s convictions
and acquitted them. It also dismissed the applicant's civil claim. Its
opinion read as follows:

“...The courts below arrived at the erroneous
conclusion that the two [officers]' act had been wrongful and contrary
to Article 131 [§ 1] (2) of the CC...

This is so for the following reasons:

The [officers'] act does not amount to an offence,
as they acted under the prerequisites of section 40(1), points 1 and
2 of the National Police Act [of 1993] and within the bounds set by
this Act on the use of physical force, namely information about the
perpetration of a publicly prosecutable offence in the centre of Vidin,
which was broadcast over the [police] radio station and was received
by [Mr G.G.] and [Mr V.E.]. Moreover, the description of the perpetrator
who had fled from the crime scene coincided with the appearance of the
[applicant], and for this reason the ... officers mistook him for the
wanted offender. What is more, the [applicant] did not obey and through
his actions refused to comply with the lawful order of the [officers],
who tried to stop him by shouting 'Stop! Police!' Instead, he tried
to escape, in order to avoid arrest by the [police], who, in line with
their duties, gave chase with a view to arresting the suspect. As it
were, not only did the [applicant] not obey, but he also resisted the
[police officers]. Finally, the injuries he sustained upon his arrest
are within what is permissible under sections 40 and 41 of the [National
Police Act of 1993].

The overall situation, including the [applicant]'s
inadequate behaviour, led the [officers] to conclude that he was the
offender who was being sought after and who had to be caught, overawed
and apprehended. This conclusion and the lawful actions of the officers,
including the use of force with its consequences for the [applicant],
rule out the criminality of their act. [To hold o]therwise [would mean
to render] the above-mentioned provisions of the [National Police Act
of 1993] nugatory.”

II. RELEVANT DOMESTIC LAW

A. Use of force by the police

43. Section
40(1) of the now repealed National Police Act of 1993 („Закон
за националната полиция“) read, as relevant:

“... police [officers] may use ... force ... when
performing their duties only if they [have no alternative course of
action] in cases of:

1. resistance or refusal [by a person] to obey a lawful
order;

2. arrest of an offender who does not obey or resists
the police [officers]; ...”

44. By section 41(2) of the Act, the use of force
had to be commensurate to, inter alia, the specific circumstances and the personality
of the offender. Section 41(3) of the Act directed police officers to
“protect, if possible, the health ... of the persons against whom
[force was being used].” Section 41(4) of the Act provided that the
use of force had to be discontinued immediately after its aim had been
attained.

45. Article 12a § 1 of the CC, adopted in 1997,
provides that the injuring of alleged offenders during their arrest
is not a criminal act, provided that there exists no other way for their
apprehension and the measures used during the arrest do not exceed what
is necessary and lawful. By paragraph 2 of this Article, there is such
an excess where there exists an obvious disproportion between the character
and the gravity of the offence allegedly perpetrated by the arrestee
and the circumstances of the arrest, and also where the arrestee is
unnecessarily and excessively harmed. The persons effecting the arrest
are criminally liable only if they cause the harm wilfully.

B. Duty to investigate police ill-treatment

46. Articles 128, 129 and 130 of the CC make it
an offence to inflict grievous, intermediate or minor bodily harm on
another person. The CC defines intermediate bodily harm as, inter alia, one which involves a temporary life-threatening
health disorder or a permanent non-life-threatening health disorder (Article
129 § 2 of the CC). Minor bodily harm is one which does involve a health
disorder, but is not specifically referred to in Articles 128 § 2 and
129 § 2 of the CC (Article 130 § 1 of the CC).

47. If the bodily harm is inflicted by a police
officer in the course of or in connection with the performance of his
duties, the offence is an aggravated one (Article 131 § 1 (2) of the
CC). It is publicly prosecutable (Article 161 of the CC).

48. Criminal proceedings for publicly prosecutable
offences could be instituted only by the decision of a prosecutor or
an investigator (Article 192 of the CCP, as in force at the relevant
time). The prosecutor or the investigator had to open an investigation
whenever they received information, supported by sufficient evidence,
that an offence had been committed (Articles 187 and 190 of the CCP,
as in force at the relevant time).

49. Before 1993 the offences allegedly committed
by police officers were tried by military courts (Article 388 § 1 (2)
of the CCP, as in force at the relevant time). In December 1993 this
text was amended to provide that the military courts no longer had jurisdiction
in respect of such offences (Article 388 § 1 (2) of the CCP, as amended
in December 1993). A new amendment in June 1995 reverted to the old
regime (Article 388 § 1 (2) of the CCP, as amended in June 1995 and
in force until 1 January 2000). If a case falls within the jurisdiction
of the military courts, the preliminary investigation is handled by
military investigators and prosecutors.

C. Civil remedies in respect of police ill-treatment

50. Section 45(1) of the Contracts and Obligations
Act of 1951 („Закон за задълженията и договорите“)
provides that everyone is obliged to make good the damage which they
have, through their fault, caused to another person. Section 49 of the
Act provides that a person who has entrusted another with performing
a job is liable for the damage caused by that other person in the course
of or in connection with the performance of the job.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3
OF THE CONVENTION

51. The applicant complained that in the evening
of 14 May 1994 he had been ill-treated by two police officers. He relied
on Articles 3, 5 § 1 and 8 of the Convention.

52. The Court considers that the complaint should
be examined solely under Article 3 of the Convention, which provides:

“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”

A. Admissibility

53. The Government raised an objection, claiming
that the applicant had failed to exhaust domestic remedies. They submitted
that he could have claimed damages under section 45 et seq. of the Contracts
and Obligations Act of 1951. The fact that the officers had been acquitted
did not automatically forestall this possibility, as the degree of fault
required in respect of a tort was lesser than the one required for a
criminal offence. Section 45(2) of that Act created a presumption of
fault. The applicant could thus either sue the police officers in tort,
or try to establish their employer's vicarious liability.

54. The applicant submitted that after the acquittal
of the police officers and the dismissal of his civil claim by the Supreme
Court of Cassation, he had not had at his disposal any further remedies.
In his view, a civil suit could not provide an effective remedy in respect
of an alleged ill-treatment by State agents; only a criminal investigation
was sufficient to redress such grievances. In any event, a civil suit
was not possible, because a civil court would be bound by the Supreme
Court of Cassation's holding as to the lack of criminality in the officers'
act. Moreover, a fresh civil action by the applicant, whether against
the officers themselves or their employer, would be rejected on res judicata
grounds, as the applicant's civil claim in the criminal proceedings
had already been dismissed.

55. Article 35 § 1 of the Convention provides,
as relevant:

“The Court may only deal with the matter after
all domestic remedies have been exhausted, according to the generally
recognised rules of international law...”

56. The aim of the rule of exhaustion of domestic
remedies referred to in Article 35 § 1 is to afford Contracting States
an opportunity to put matters right through their own legal system before
having to answer before an international body for their acts (see, among
many other authorities, Egmez v. Cyprus, no. 30873/96, § 64, ECHR 2000-XII). Where
there is a choice of remedies, the exhaustion requirement must be applied
to reflect the practical realities of the applicant's position, so as
to ensure the effective protection of the rights and freedoms guaranteed
by the Convention (see Allgemeine Gold- und Silberscheideanstalt A.G. v. the United Kingdom,
no. 9118/80, Commission decision of 9 March 1983, Decisions and Reports
(DR) 32, p. 165; and, more recently, Krumpel and Krumpelová v. Slovakia, no. 56195/00, § 43, 5
July 2005). Moreover, an applicant who has used a remedy which is apparently
effective and sufficient cannot be required also to have tried others
that were also available but probably no more likely to be successful
(see Wójcik
v. Poland, no. 26757/95, Commission decision of 7 July 1997,
DR 90-A, p. 28; Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments
and Decisions 1998-VIII, p. 3286, § 86; Aquilina v. Malta [GC], no. 25642/94, § 39, ECHR 1999-III;
and Günaydin
v. Turkey (dec.), no. 27526/95, 25 April 2002).

57. The Court notes that the applicant's parents
complained about the incident to the prosecution authorities, which
opened criminal proceedings against those responsible. The applicant
joined these proceedings as a civil claimant (see paragraphs 19, 20
and 24 above). Seeing that the remedies available within the criminal
justice system in Bulgaria are the normal avenue of redress for alleged
police ill-treatment (see Kemerov v. Bulgaria (dec.), no. 44041/98, 2 September 2004, with further
references), the Court does not find the applicant's choice of procedure
unreasonable. It may be true that even after the acquittal of the officers
and the dismissing of the civil claim in the criminal proceedings the
applicant could still bring a tort action against the officers or against
the body vicariously liable for their actions. However, the Court, in
line with its consistent case-law, considers that, having used up the
possibilities available to him within the criminal justice system, the
applicant was not required to embark on another attempt to obtain redress
by issuing separate civil proceedings (see Assenov and Others, cited above, p. 3286, § 86).

58. Moreover, a tort action would have at most
resulted in an award of damages, whereas in cases of serious ill-treatment
by State agents the alleged breach of Article 3 cannot be remedied exclusively
through the payment of compensation (see, among many other authorities, İlhan v. Turkey
[GC], no. 22277/93, § 61, ECHR 2000-VII). If the authorities could confine
their reaction to such incidents solely to the payment of compensation,
while not doing enough to identify and punish those responsible, it
would be possible in some cases for agents of the State to abuse the
rights of those within their control with virtual impunity. Thus the
general legal prohibition of torture and inhuman and degrading treatment
and punishment, despite its fundamental importance, would be ineffective
in practice (see Krastanov v. Bulgaria, no. 50222/99, § 60, 30 September 2004, with further
references).

59. The Government's objection must therefore
be dismissed.

B. Merits

60. The applicant submitted that the physical
force employed by the police officers for his arrest had been clearly
excessive and completely unwarranted. He had been fourteen years old
at the time of the incident. The car from which the officers had come
out had not been marked as a police vehicle. The street in which the
chase had started had not been well lit and the officers had not properly
identified themselves. He had therefore run not to avoid arrest, but
because, fearing for his safety, had tried to get to a place with better
lighting and more bystanders. Having reached such a spot, he had stopped
before the officers had caught up with him. Furthermore, although he
had not resisted arrest, he had received an unwarranted beating, had
been kicked and hit with truncheons while lying on the ground. This
assault had continued long after he had been subdued. As a result, his
kidney had been seriously injured, which had later led to its surgical
removal.

61. The Government submitted that the encroachment
upon the applicant's bodily integrity – a health disorder which had
lasted two or three weeks – had not amounted to inhuman and degrading
treatment within the meaning of Article 3, as it had not exceeded the
threshold of severity under this provision. The use of force against
the applicant had lasted less than a minute, for the sole purpose of
preventing his flight. The officers' actions had been unavoidable and
had been discontinued immediately after the applicant's arrest. The
officers had exhibited no positive intention of injuring or humiliating
the applicant. Immediately after the incident they had escorted the
applicant to a hospital and then to his home. The applicant's averment
that his kidney had been injured as a result of the incident had been
rejected by the national courts. As the applicant's injuries had not
been caused by the use of excessive force and as he had resisted arrest,
it was incumbent on him to prove the causal link between the use of
force and the subsequent kidney problems. Another point which had to
be taken into account was that in Bulgaria there existed detailed rules
on the use of force by law enforcement officers; these rules provided
adequate protection against ill-treatment.

62. As the Court has stressed many times, Article
3 enshrines one of the fundamental values of democratic society. Even
in the most difficult of circumstances, such as the fight against terrorism
or crime, the Convention prohibits in absolute terms torture or inhuman
or degrading treatment or punishment. Unlike most of the substantive
clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes
no provision for exceptions and no derogation from it is permissible
under Article 15 of the Convention even in the event of a public emergency
threatening the life of the nation (see, among many other authorities, Assenov and
Others, cited above, p. 3288, § 93). To fall within the scope
of Article 3 ill-treatment must attain a minimum level of severity.
The assessment of this minimum is relative: it depends on all the circumstances
of the case, such as the duration of the treatment, its physical and/or
mental effects and, in some cases, the sex, age and state of health
of the victim. Further, in determining whether a particular form of
ill-treatment should be qualified as torture, consideration must be
given to the distinction, embodied in Article 3, between this notion
and that of inhuman or degrading treatment. As noted in previous cases,
it appears that it was the intention that the Convention should, by
means of this distinction, attach a special stigma to deliberate inhuman
treatment causing very serious and cruel suffering (see, among many
other authorities, İlhan, cited above, §§ 84 and 85).

63. According to the Court's case-law, Article
3 does not prohibit the use of force for effecting an arrest. However,
such force may be used only if indispensable and must not be excessive
(see, among others, Klaas v. Germany, judgment of 22 September 1993, Series A no. 269, p.
17, § 30; Rehbock v. Slovenia, no. 29462/95, §§ 68-78, ECHR 2000-XII; Altay v. Turkey,
no. 22279/93, § 54, 22 May 2001; Hulki Güneş v. Turkey,no. 28490/95, § 70, 19 June 2003; Krastanov v. Bulgaria, no. 50222/99, §§ 52 and 53, 30 September
2004; and Günaydın v. Turkey, no. 27526/95, §§ 30-32, 13 October 2005).

64. The Court finds that the injuries which the
applicant sustained at the hands of the police officers led to grave
physical pain and suffering. Moreover, they had lasting consequences
for his health (see paragraphs 8, 11 and 14-18 above). It is also clear
that the acts of violence against the applicant were committed by the
police officers in the performance of their duties. They took place
during the applicant's arrest (see paragraphs 8 and 9 above). The exact
circumstances of the arrest and intensity of the force used against
the applicant were disputed by the parties and were subject to conflicting
evaluations by the national courts. While the first- and the second-instance
courts were of the view that the violence against the applicant had
been wrongful and had exceeded what was necessary to effect his arrest,
and accordingly found the police officers guilty (see paragraphs 34,
36 and 39 above), the Supreme Court of Cassation held that the use of
force had been fully warranted and reversed the conviction (see paragraph
42 above). However, the acquittal of the officers by a national court
bound by the presumption of innocence and by the manner in which domestic
law regulates the use of force by the police does not absolve Bulgaria
from its responsibility under the Convention (see, mutatis mutandis, Ribitsch v. Austria, judgment of 4 December 1995, Series A no. 336, p.
26, § 34). The Court must scrutinise the alleged breach of Article
3 with heightened vigilance, because this provision prohibits inhuman
treatment in absolute terms, irrespective of the victim's conduct (ibid.,
p. 24, § 32). Bearing in mind the nature and the extent of the applicant's
numerous and serious injuries, the circumstances surrounding his arrest
(including the fact that the officers, who were merely trainees, were
not accompanied by a supervisor – see paragraph 8 in limine), and the fact that at the material time the applicant
was only fourteen years old and clearly inferior to the officers in
terms of physical strength, and analysing these facts in the light of
its jurisprudence in this domain (see paragraph 63 above), the Court
concludes that the force used against the applicant was clearly excessive,
both in intensity and duration.

65. There has accordingly been a violation of
Article 3 of the Convention.

II. ALLEGED VIOLATIONS OF ARTICLES
3, 6 § 1 AND 13 OF THE CONVENTION

66. The applicant complained that the criminal
proceedings against the police officers, in which he had participated
as a civil claimant, had been unfair. He submitted that the courts had
not been objective in their assessment of the facts and had failed to
redress the grievance which he bore as a result of the beating. He relied
on Articles 3, 6 and 13 of the Convention.

67. The text of Article 3 has been set out in
paragraph 52 above. Articles 6 and 13 provide, as relevant:

Article 6 § 1

“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair and public hearing within
a reasonable time by an independent and impartial tribunal established
by law. ...”

Article 13

“Everyone whose rights and freedoms as set
forth in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has been
committed by persons acting in an official capacity.”

A. Admissibility

68. The parties did not comment on the admissibility
of this complaint.

69. The Court considers that the complaint is
not manifestly ill-founded within the meaning of Article 35 § 3 of the
Convention, nor inadmissible on any other grounds. It must therefore
be declared admissible.

B. Merits

70. The applicant submitted that the proceedings
against the police officers had been flawed in several respects. The
courts had failed to convict the officers and had rejected his civil
claim despite the availability of clear and overwhelming evidence of
the unjustified use of force against him. The courts had also failed
to properly examine the causal link between the beating and the ensuing
surgical removal of his kidney. The approach adopted by Supreme Court
of Cassation, leading to the officers' acquittal, had been in clear
conflict with the standards under Article 3 of the Convention, whereas
the investigation required under this provision had to be based on criteria
comparable to those developed by the Court.

71. The Government submitted that the authorities
had conducted an effective investigation of the incident of 14 May 1994.
The investigation had been started promptly and had later proceeded
at a good pace, with a slight delay due to the need to prepare medical
reports. The authorities had gathered all relevant pieces of evidence,
including witness' statements and medical opinions. All levels of court
had analysed the evidence in detail. The applicant's initial averment
that they had been influenced by the counsel for the police officers,
who had formerly been a military prosecutor, was completely groundless.

72. The Court considers that the applicant's complaint
concerning the lack of an effective investigation falls, in the circumstances,
to be dealt with under Article 13 of the Convention rather than Article
3 thereof (see, mutatis mutandis, İlhan, cited above, §§ 89-93).

73. The Court further finds that the applicant's
complaints under Article 6 of the Convention are very closely bound up
with his criticism of the manner in which the courts treated his ill-treatment
and the repercussions which this had on the capability of the proceedings
against the police officers to redress the grievances which he harboured
as a result of this ill-treatment. It is accordingly appropriate to examine
those complaints in relation to the State's more general obligation
under Article 13 to provide an effective remedy in respect of all alleged
violations of the Convention (see, mutatis mutandis, Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, p. 329, § 105; and Sabuktekin v. Turkey, no. 27243/95, § 108, ECHR 2002-II (extracts)).

74. Article 13 requires a domestic remedy to enforce
the substance of the Convention rights and freedoms in whatever form
they might be secured in the national legal order (see, among many other
authorities, İlhan, cited above, § 97).

75. The scope of the obligation under Article
13 varies depending on the nature of the complaint. In the case of an
arguable allegation of a breach of Article 3, Article 13 calls for an
effective mechanism for establishing the liability of State officials
or bodies for acts or omissions involving a breach of the victims' rights
under the Convention (see, mutatis mutandis, Z and Others v. the United Kingdom [GC], no. 29392/95, § 109,
ECHR 2001-V; and Paul and Audrey Edwards v. the United Kingdom, no. 46477/99,
§ 97, ECHR 2002-II). In particular, if the allegations concern torture
or serious ill-treatment by State agents, this mechanism must consist,
at a minimum, of a thorough and effective investigation capable of leading
to the identification and punishment of those responsible (see, among
many other authorities, İlhan, cited above, § 97). This investigation must be based
on a standard comparable to the one used by the Court in assessing complaints
under Article 3 (see Tzekov v. Bulgaria, no. 45500/99, § 71, 23 February 2006,
citing Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98,
§ 113, ECHR 2005-VII). The same goes for the ensuing judicial proceedings,
should the case come to trial. The national authorities, while bound
by the presumption of innocence and by the terms in which domestic law
is couched (see Ribitsch, cited above, p. 26, § 34), must nevertheless review
the acts alleged to amount to a breach of Article 3 of the Convention
in the light of the principles which lie at the heart of the Court's
analysis of complaints under this provision (see, mutatis mutandis, Soering v. the United Kingdom, judgment of 7 July 1989, Series
A no. 161, pp. 47-48, § 121; Vilvarajah and Others v. the United Kingdom, judgment of 30 October
1991, Series A no. 215, p. 39, § 123; and Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96,
§ 138, ECHR 1999-VI).

76. On the basis of the evidence adduced in the
present case, the Court has found that the respondent State is responsible
under Article 3 for the inhuman treatment suffered by the applicant
(see paragraph 65 above). The applicant's complaint in this regard was
therefore arguable for the purposes of Article 13. He was accordingly
entitled to the protection afforded by this provision.

77. The Court notes that while the authorities
investigated the applicant's beating, brought those responsible for
it to trial, and convicted and sentenced them, the conviction and sentence
were later quashed and the police officers who assaulted the applicant
were acquitted. Unlike the situation obtaining in Ribitsch (cited above), in the case under consideration this
acquittal was not due to the lack of sufficient proof that the officers
had committed the act alleged against them, but was rather the result
of the manner in which the Supreme Court of Cassation construed the
domestic-law provisions regulating the use of force by the police (see
paragraph 42 above). It is not for the Court to determine whether this
construction was correct, as it is for the national courts to interpret
domestic law. The Court must however verify whether the manner in which
this law has been applied led to a breach of the applicant's right under
Article 13 of the Convention to an effective remedy. As already noted
(see paragraph 75 above), this right implies that the domestic courts
have to examine allegations of breaches of Article 3 of the Convention
in line with the standards developed by the Court in its case-law under
that provision.

78. As is apparent from this case-law, in each
case the Court carefully examines whether the force used during arrest
operations is excessive and goes beyond what may be considered strictly
necessary in the circumstances (see the cases cited in paragraph 63
above). Indeed, sections 40 and 41 of the National Police Act of 1993,
which expressly direct the police to minimise the use of force and tailor
it to the surrounding circumstances and the person against whom it is
being used, seem to reflect similar concerns (see paragraphs 43 and
44 above).

79. However, in the instant case the Supreme Court
of Cassation did not embark on an assessment of the proportionality
of the force used against the applicant. While it referred to sections
40 and 41 of the National Police Act of 1993, it did not endeavour to
analyse the degree of force and whether it was necessary and proportionate
in the circumstances (see paragraph 42 above). The courts below it had
clearly established that the applicant had suffered numerous injuries
and that these were the result of excessive force (see paragraphs 34,
36 and 39 above). Without subjecting these findings to doubt, the Supreme
Court of Cassation gave them a different legal qualification, holding
that the officers had lawfully assaulted the applicant, as he had tried
to escape and had been – albeit wrongfully – identified as the person
wanted by the police. In so doing, that court treated as irrelevant
a number of other factors – that at the time of the events the applicant
was fourteen years old, that the violence against him had continued
after he had been subdued, and that the beating had been wilful –,
all of which were material for determining whether the act complained
of amounted to a breach of Article 3 of the Convention. This approach
was fully inconsistent with the standards stemming from this Court's
case-law in this domain. The Supreme Court of Cassation thus failed to
address the substance of the applicant's Convention complaint.

80. There has therefore been a violation of Article
13 of the Convention.

III. ALLEGED VIOLATIONS OF ARTICLE
5 §§ 1 AND 2 OF THE CONVENTION

81. The applicant complained that after being
examined in the emergency ward of the Vidin Regional Hospital at 10.01
p.m. on 14 May 1994 he was taken to the police station where he was
questioned and was not informed of what offence he was being suspected.
He relied on Article 5 §§ 1 and 2 of the Convention.

82. Article 5 §§ 1 and 2 provide, as relevant:

“1. Everyone has the right to liberty and security
of person. No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:

...

(c) the lawful arrest or detention of a person
effected for the purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed an offence or
when it is reasonably considered necessary to prevent his committing
an offence or fleeing after having done so;

...

2. Everyone who is arrested shall be informed
promptly, in a language which he understands, of the reasons for his
arrest and of any charge against him.”

83. The Court notes that the applicant was taken
to the police station at about 10.30 p.m. on 14 May 1994 and was released
half an hour later (see paragraph 12 above). It does not appear that
later he tried to use any domestic remedy in respect of the violations
he alleged. Even assuming that no such remedies existed, the Court considers
that, in so far as the complaints under Article 5 §§ 1 and 2 are concerned,
the six-month period under Article 35 § 1 of the Convention started
to run at the time of the applicant's release from custody, that is
on 14 May 1994. However, the applicant lodged his application with the
Court on 14 April 1998, long after its expiration.

84. It follows that these complaints have been
introduced out of time and must be rejected in accordance with Article
35 §§ 1 and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF
THE CONVENTION

85. Article 41 of the Convention provides:

“If the Court finds that there has been a violation
of the Convention or the Protocols thereto, and if the internal law
of the High Contracting Party concerned allows only partial reparation
to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”

A. Pecuniary damage

86. The applicant claimed 40,000 euros (EUR) in
respect of pecuniary damage. He submitted that the injuries necessitating
the surgical removing of his kidney had been the direct and proximate
result of his beating by the police officers. According to the information
in his possession, the average price of a kidney transplantation was
between EUR 40,000 and EUR 50,000. The applicant did not submit any documents
in corroboration of his claim.

87. The Government did not comment.

88. The Court notes that the applicant does not
aver that he has already undergone a kidney transplantation, nor has
he produced any proof of the exact cost of such a transplantation, such
as an estimate from an appropriate medical institution. The Court, even
assuming that the removing of the applicant's kidney was the result
of the violence against him, cannot speculate on this issue and therefore
rejects the applicant's claim as unsubstantiated.

B. Non-pecuniary damage

89. The applicant claimed EUR 25,000 in non-pecuniary
damages. He relied on the relevant case-law and submitted that he had
sustained extremely serious injuries as a result of his ill-treatment
and had experienced acute pain while being ill-treated. The injury to
his kidney had also caused him severe pain for the two years after his
beating, until the kidney was removed. The applicant further submitted
that he has suffered emotionally as a result of the manner in which
the authorities had handled the case against the police officers who
had ill-treated him.

90. The Government did not comment.

91. The Court found above that the applicant,
who was only fourteen years old at the time of his ill-treatment, suffered
serious injuries at the hands of police officers. It also found that
in the instant case the remedies in the domestic legal system did not
turn out to be effective. Having regard to the awards made in previous
similar cases and to the circumstances of this case, the Court decides
to award in respect of non-pecuniary damage the sum of EUR 12,000, plus
any tax that may be chargeable.

C. Costs and expenses

92. The applicant sought the reimbursement of
EUR 2,880 incurred in legal fees for the proceedings before the Court.
He submitted a time-sheet of the hours which his representative had spent
working on the case and the fee agreement between them.

93. The Government did not comment.

94. According to the Court's case-law, an applicant
is entitled to reimbursement of his costs and expenses only in so far
as it has been shown that these have been actually and necessarily incurred
and were reasonable as to quantum. In the present case, the Court, having
regard to the information in its possession, the above criteria and
the fact that the applicant has received EUR 715 by way of legal aid
from the Council of Europe, considers it reasonable to award the sum
of EUR 2,165, plus any tax that may be chargeable.

C. Default interest

95. The Court considers it appropriate that the
default interest should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Dismisses the Government's objection of non-exhaustion of domestic
remedies;

2. Declares admissible the applicant's complaints about his ill-treatment
by two police officers and about the ineffectiveness of the domestic
remedies in this regard;

3. Declares the remainder of the application inadmissible;

4. Holds that there has been a violation of Article 3 of the Convention;

5. Holds that there has been a violation of Article 13 of the
Convention;

6. Holds

(a) that the respondent State is to pay
the applicant, within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2 of the Convention,
the following amounts:

(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the
above amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;

7. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing
on 12 April 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Peer
Lorenzen
Registrar President

1. After a period of sharp
inflation rise in 1995-97, on 5 July 1999 the Bulgarian lev was revalorized.
One new Bulgarian lev (BGN) equals 1,000 old Bulgarian levs (BGL).